Norma Angelica Ponce-Arriaga, A205 131 985 (BIA May 22, 2015)

8/21/2019 Norma Angelica Ponce-Arriaga, A205 131 985 (BIA May 22, 2015)

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U.S Department of Justice

Executive Oce r Immigration Review

Board of Immigration AppealsOce ofthe Clerk

5/07 Leesburg Pike. Sute 000Fa Church Vrn 20530

Owings, Sarah Weston Hayes HS/ ICE Office of Chief Counsel· ATLAntonini and Cohen Immigration Law Group 180 Spring Street Suite 332P.O Box 89097 Atanta GA 30303Atanta, GA 30312

Name: PONCE-ARRIAGA, NORMA ANG A 205131985

Date of this notice 5/ 22/ 2015

Enclosed is a copy of the Board's decision and order in the above-reerenced case.

Enclosure

Panel Members:

Wendland, Linda S.Greer Anne JPauley, Roger

Sincerely,

DO caDonna CarrChie Clerk

Uetea Docket

For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

Cite as: Norma Angelica Ponce-Arriaga, A205 131 985 (BIA May 22, 2015)


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Execuive Oce r Immiation Review

Decision of he Board o Immiation Appeals

Fas Chuch, Viginia 20530

File: A205 131 985 Atanta, GA

n re: NOA AGELCA POCEAGA

N REMOVAL PROCDNGS

APEAL

ON BEHALF OF RESPONDENT: Sarah W. Owings, Esquie

ON BEHALF OF DHS:

CHGE:

Sirce E. OwenAssistant Chef Counsel

Date:

Noce: ec. 212(a)(6)(Ai), & Act [8 U.S.C. § 1182((6)(A)(i)] Present without being aded or paroled

APPLCATO: Teinaon; voluntay depaure

UY 120

The respondent, a natie and citizen of Mexico, appeas om he miaion Judge's November 15, 2013, decision ordering her removed om the United States to Mexico anddenying her application r post-conclsion voluntary deparure under secon 240B() of the

ion d Naonali Ac, 8 U.S.C. § 1229c(b). The Deparent of Homeld Securi(HS") opposes the appeal. The appea wil be sustained and the record wil be remanded.

We review an mation Judge's ndings of ct, including credibility deteaons,under clely erroneous" standd. 8 C.F.R. § 1003.d(3)(i). We review questions of law,discreon, and judgment and all oher issues i appeals om decisions of iation Judgesde novo. 8 C.F.R. § 1003.(d)(3)(ii).

e respondent admitted that she is a native and citien of Mexico (.J. at 13; Tr. at 3536;xhs. 12, 3 t Tab A). As aienage was established the burden shed to he respondent toestablish the time, maer, and place o eny into he United Stes. See sections 240c)(2),291 of the Act, 8 US.C. § 1229ac)2, 36; 8 C.F.R. § 1240.8(d).

he esondent clas hat she has not le he United tates since her Aust 9, 28,adission (I.J. at 3; Tr. at 3637, 7071; Exhs. 2 3 at Tab A). Although evidence submted by the HS indicates hat she entered the United States on August 19, 2008, and then le theUnited States on ovember 9 2008, the respondent claims at her ther inadveentlysubmied her 94 when he reted to Meico om he United Stes on hat date J. at 3; Tr.at 3738, 45, 71; Exh. 3 at Tab A; Exh. 5 at 5, 7). n suppo of his claim, the respondentsed documentaon poing to show at she was physically present in he Unted Stateson d ond November 9, 2008, as well as a noized stement om her her indicang hat

Cite as: Norma Angelica Ponce-Arriaga, A205 131 985 (BIA May 22, 2015)


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he mistakenly e i th rspondnt's 94 when he re to Mexico om the Unite Steson November 9, 2008 (Eh. 3, Tabs B-G).

er making an avrse creibili ndng, the Iiion Jug detene thatthe rsponnt was inamssble uner sction 212(a)(6)(A)(i) of the Act 8 .S.C.§ 82(a)(6)(A)() (I.J. at 2-3, 9-10). The mmation Judge also nie the respondentsapplication r postconclusion volunt pe n the xrcs of iscreton (I.J. at 910).

On appe, e responent assets at e mmiaion Judg ee susg th chgeo removabili wout consrg the record evience inicatng that sh not epart onovember 9, 2008 esp. Br. at 57). Relatly, she us that the Immation Jug'savers creibili ng is b on a misunerstaning o hr testimony esp. Br. at 7-9).

Th Immigation Jug that e rspondent's tstimony rgng hr August 2008admission to h nit States was inconsistnt w ocentary vince submt by thDHS (.J. at 7, 9). Th Immiaton Jug un that the rspondent teste that sh ha nvrgotten out of e c t w only her er who had hanle papwork r her avel inAugust 2008" (I.J. at 7, 9). Th Immiaton Juge her un that s tesimony wasinconsistent with a SISIT ocumnt showng that th rsponnt was ngerinte andphotoaphe ing hr August 2008 n into Unte Stes (I.. at 7, 9; Exh. 5)

n respons to her counsls queston rgarding what happen to the -94 rcting herAugust 2008 en, th rsponnt tste that

What happens whn they gve you ts pt at the enance, whn you enter, isthat we all show up at th place where they give you the ocnton, we showup as a amily, my a s the on that takes veything an hds evryhng bac, becaus at the secon wndow, whch is wher you show up when you'rivng n the c, my a is th one iving, h's t one on th sie o thewinow, so h wr sng in th bac an h hs everything in.

(Tr. at 3637). When the responent was shown the US-VISIT ocument showing that herphotoph was taken an sh h been ngerinted, the responent answr:

Yes, yes, because whn they gve you th peit, you have to go in personally, toget inpecte, but what sai is that at the secon winow, theres otherinspection an, whr thy rvis your documents, an bcaus I was not driving,

my athr an my da was, wr riving, but thn whn we come to that lnewhre they sto us, we ont get out of the car. ey just look at our documentsan gve us the permit, but n the rst one, in th rst on, ys, we o come out tohave em check us d o our photos ngerpnts

(Tr. at 66; see also Tr. at 73). Our revew o the recor oes not suppo the mmgraton Judge'sing that the respondnt tstie that she di not get out o th car ung her August 2008en Morover, as the rsponent persuvely argus on appal, ierncs in her testmonyare reonably explane by t ct that she was swein g two irnt questionsthe rst

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A205 131 985

about what hapened to the I-94 she was given durng her entry and the second about whehershe was ersonay inseced and adied to e Unit States (Res. Br. at 8-9; Tr at 36, 66)Consequenty, is aspect of he Iigration Judges adverse credibiity nding is ceary

eoneous.

We nd at a remd is necessary r he Iiion Judge to reassess the respondenscredibii and conduc her ct-nding d anaysis regding whether e resonden mether burden to estabish time ace, and maer of en, or nstead is subject o remoa aschged On remd, he Iiation Judge shoud exiciy consider he docmearyevidence submited by he respondent regarding wheher she dearted the Unted Ses onNoember 9, 2008 or instead remained resent dring he eriod in quesion (xh. 3).See section 240(c)(4)(C) of e Act, 8 U.S.C. § 1229a(c)(4)(C) roiding at credbiitydeteinatons mus be made [ c]onsiderig the totai of e circumstces, d a reectors") In ight of he disosition of is aea, we decine to address he resonden'salteie requess r rosecutoria discretion nd adminsatie cosure a is tme (Res. Br.at 910).

Accordingy, the owng orders w be entered

OER: The resondent's apea is sustained.

FURTHR OER The record is reanded r er proceedings consistent w hisorder and r e eny of a new decision.

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UNITED STATES DEPARTMENT OF JUSTICEEXECUTVE OFFCE FOR IMMGRATON REVIEW

UNTED STATES IMMGRATION COURT

ATLANTA GEORGA

File: A205-131-985 November 5 2013

In the Matter of

NORMA ANGELICA PONCEARRAGA))))

N REMOVAL PROCEEDNGS

RESPONDENT

CHARGE: 212(a)(6)(A)() of the INA, as ameded i that the espodet isa ae preset in the Uited States without beig aditted oparoled o who aved n the Unted States at any time o paceother than as desigated by the Attoey Genea

APPLATONS Voutary departure postcocluson or Section 240B(b) of the Act

ON BEHALF OF RSPONNT SARAH W. H. OWINGS EsquirePO Box 89097

Atata Geoga 3032

ON BEHALF OF HS SIRCE OWEN Assstant Chief CounselDEPARTMENT OF HOMELAND SECURITY180 Spg Steet Southwest Atlanta Geoga 30303

ORAL SION OF TH MMGRTO JUG

The responden is an adult female nave and citizen o Mexco wo was issed a

Notice to Appea on Febuay 8 202 See Exhibt No

At a Master Caeda hearig held o May 13 2013 the espondet admitted

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allegations 1 and 2 and denied allegatons 3 and 4. A contested hearing was scheduled

for today's date n order for the respondent to establsh manner and place of arriva and

a hearng was hed, which the Court wil address n just a moment Alegatons 3 and 4

were found to be true by clear and convincng evdence and the charge under

212(a)(6)(A)() was sustaned in that the respondent s n fact present wthout being

admitted or paroed The Cout found removabiity to be establshed See Secton

240(c)(1)(A) of the Act

The issue before the Cout concerns respondents applicatons fr reef from

removal

The respondent's sole applcaton for relef at this time s voluntay depature,

post-concusion In order for the respondent to establsh eigblty fr this form of reef

she must estabish that she has had physcal presence n the Unted States fr at east

one year precedng the sevce of the Notce to Appear, that she hs had good moral

character for at east five years precedng the appication, that she has not been

convcted of an aggravated felony and she is not deportabe under Section 237(a)(4),

which are security grounds She aso has to show by clear and convincng evdence

that she has the means to depart and the intenton to do so and has not been previousy

granted vountay departure under Section 2408 aer having been found inadmssibe

under Section 212(a)(6)(A)(i) and, in this case, most mpotanty she must establsh that

she s deseving of the favorable dscretion of the Cout

Procedural Histo

As stated befre, the respondent had contested alegations 3 and 4 on the Notce

to ppear On toays ate a hearin was held n orer to etermine ho an when

she entered the Unted States and whether she n fact had entered with a visa which is

the respondents position A summay of her testimony s as foows

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Te responden esified oday under oat a se ad several entries o te

Unied Sates and on eac occasion se indicates se ad traveled wit a visa. Her

tesiony was not credible and te Cour wi reac at deterination in jus a moent

Bu ust in order o sed soe ligt as to wa exactly te testiony of e responden

was, e following is wat we can recap

Se indicaes at se is 45-yearsold se is a native and citizen of Mexico and

se is a universiy graduae Se categorized erself as an educaed

Se says ta se las enered te United Staes in August of 2008 and se

entered by road driving Se was asked if se ad a visa a ta tie and se said yes

Se was asked if se ad received any papeork fro te Unied Saes Governent

Se ten categorized wat se received as "te perit at tey give us and er

rendiion upon er atorneys quesioning was is is wat occurred.

Se said we travel as a faily My fater is e one wo takes everyting and

ands eveying back My dad is e driver so e ands eveyting over and se went

on o expain in furter detail upon questioning fro er attorney at se ad not faced

igration auorities, but tat er faer ad anded al e papework because tey

entered in a car as a faily Ta e was e one wo anded everyting He

colleced al of te passports turned tose docuens in and received e 94's back

and tat e was te one wo was r all purposes cusodian of te Iigration

docuens Se said a tey went o a second point of inspection were ey were

waved in and er fater inadvertenty kep er -94 Se says at se as not departed

since ta last enry in August of 2008 and ta wen er faer and moer reurned o

Mexco e navertently turne in er 4 Se says er parens eparted They

sayed approxiately or tree to four ons or er oers ciropractic erapy

Se was asked were te 94 was Tis is wen se explained at er fater sored

A205-31985 3 November 15 2013

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everythng and we fgot to recove the 94 because, well, when you are n the Unted

States, you do not need t anymoe and so she says he kept t He aso kept the 94 of

all of he sblngs accodng to her She says he turned t n when he left n error.

At that tme the espondents counse tendered what has been marked nto the

ecod as Exhbt No 4 These are fur -94's whch the respondent has been ssued,

past tavel, and n fact she was asked about those documents because thee was some

confuson as to exacty what she was efeng to Those documents wee then coped

by the Cout fo the beneft of a partes A copy was provded to the Govenment and t

was marked nto the ecord as Exhbt No 4 and what they ae s fur -94s ssued to

the espondent She ndcated that she does have the orgnas They ae n her

possesson, but not hee n Court.

She then was asked why the last one the -94 that s n queston now, was

tendeed to the US Government upon eturn She sad ths occurred by mstake and

she testfed that she has never entered the Unted States wthout permsson. That

pret much concluded the drect testmony of the espondent

On crossexamnaton the Government developed seveal lnes of questonng

The first s that the respondent ndcated that she frst enteed the Unted States wth a

vsa when she was appoxmatey 12 or 13 years old. She says he fathe took them to

Dsneyand to get to know the Unted States and then late on, on seveal occasons o

at east on one occason she traveed wth he sster to Chcago on vacaton

She then ndcated that she marred n June of 1997 n Mexco She was asked f

she entered the Unted States n that yea She sad yes she frst enteed sometme

aound June 28 o 29, 199 She says she departed sometme towad the end of the

yea, but she s not sure

She then sad she etuned towads Chrstmas, but t coud have been n

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November n 1997 She acknowledged she receved an 94 She was asked what she

dd wth t. She sad she returned t After several questons that were asked of her, she

was nonresponsve. She fnaly responded and ndcated that she understood that the

94 is supposed to be returned upon departure

She says her next entry, whch occurred around Chrstmas of 1997 She

receved another 94 She was asked what she dd wth that She sad "my attorney

has t and wl note that that was not tendered to the Court We do not have an 94

from 1997 She was asked then when dd she eave after arrvng the Unted States n

Chrstmas of 1997 Agan she sad she was not sure, but she says she dd not leave

untl 1999. She was asked f she was sure and she stated yes She was then

confronted wth a document that has been marked as Exhbt No. 4 ndcatng that she

entered the United States and receved an -94 on June 10, 1998. Agan she sad, as

sad, I am not certan of the dates. Now she was then confronted wth the fact that she

entered n June 1998 that that was n fact recorded and she was asked when did she

depart next and she sad maybe n 1999. Agan, she sad am not sure when

She was asked when was her next entry to the United States and agan she was

not responsive and sad that her departures were for one month or eght weeks at a

tme to tend to her mother who was l and her sster who had cancer, but that she dd

not enter the Unted States unt ater her return n 1999 here was some confuson as

to when exactly that occurred and whether she was returnng departng enterng,

eavng She was not realy clear as to whch country she was referrng to. The Court

asked her to clary and she did She sad she retued to Mexco n October of 1999

She returned to the United States n Decemer o Speciicay her date o et

was June 14 1999 She was confronted wth ths document, Exhbt No 4 Again she

then just said that she departed to Mexco n October of 1999 The record reflects at

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Exhibt No 4 that the respondent reentered the Unted States on December 22, 1999,

and she testfed that she next departed the Unted States some tme about three years

ater She was then confronted wth some documentaton that she had actualy

reentered the United States n September of 2000 She then changed her testimony.

Said she had actualy stayed approximatey six months out and returned n June of

2000 Again when she was confronted with the enty of September 2000 she then said

that she had actualy returned to the United States in December of 999, departed the

United States in June of 2000, returned to the Unted States in September of 2000

Ths s agan documented by Exhibt No 4

She was asked when was her next departure She sad maybe n 2003 or 2004

She does not recal the month Then she says she s not sure At that time the

Government tendered what was intally marked as D number 5 and has now been

marked into the record as Exhibt No. 5 That shows that she had a date of departure

from the Unted States on January 22, 2003. Agan the respondent happened to recal

She says, yes, t must have been true because my daughter was born in 2002 and I

remember she was small when we traveled, so that sounds accurate to her She says

maybe her next date of entry was near March or Aprl of 2003, more or less She then

was confronted wth Exhibit No 5 indcatng that her next date of entry was March 22,

2005, and that she agan departed the Unted States on Aprl 3, 2005 She was asked

whether she recalls traveling the United States in 2005 and she sad yes

She then was confronted with again Exhibt No 5 ndcating that she had

appeared at an interview at a Unted States Consuate in Mexico in order to apply for a

visa, which was issued on February 6, 05, and then she suddeny recalled and

reated to the Court that her purse had been stoen earier and inside her purse was her

vsa and her trave documents and agan she s not sure when ths occurred, but it was

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some months before she applied fr that visa She in fact sad that it was about fou o

fve months that had transpred fom the tme that she had her vsa papeok stolen

and when the new vsa was ssued She ndicated that when she eceived the new vsa

she eturned n March of 2005

Her testimony eare was that she eturned to Mexco in 2008 and then she was

again confonted wth Exhbt No 5 where the ecords indcate that she depated the

United States on Apr 3 2005. She was asked how dd the 94 get tued n Her

answer as it has been thoughout he entre testimony was do not know

n Exhbt No 5 again she was confonted with page 7 indcating that her

testimony eaier that she had never gotten out of the car and t was only her father who

had handed the papewok for her tave n August of 2008 was not particualy

forthcomng nsofa as there was a U.S vst documented photograph of the respondent

and she was n fact fngerprnted upon enterng nto the Unted States n August of 2008

She was confronted wth the fact that earler she had said her dad had handed a the

papeork and her response was oh sad that at the second wndow we dd not have

to get out of the ca but at the first nspecton point had to get out I was

photographed and fingepinted" She was confonted by the Court wth the fact that

she had not stated that at any tme eare She n fact had stated qute ceary that he

fathe had handled all the paperwok that nobody had gotten out of the ca and that he

was the one who has handled eveythng which is why the papework was neve

eturned to he t was smply an oversght that the 94 was not eturned to her.

She was then questoned as to whethe the -94 was stamped and eturned to

her and she sad yes She sad that on tha day she receved her stamed passpor and

a vsa returned to her Then she dened agan sayng that she did not get out of the car

and that the fathe had handled al of the famly's papewok She sad she eceived t

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and then she turned it over to her father

She aso states she never entered the Unted States unawul She also states

under oath that she never was refused ent to the Unted States or that she was never

refused a visa and then she was confronted with the fact that she appeared at an

inteiew at the United States Consuate n Februa of 2005 to renew a visa She aso

acknowledged that she had frst gone to a U.S Consulate for a visa in 2003 and that

that request was in fact refused because she dd not have some documents "that she

needed. hs agan is a direct contradicton to her testimon just seconds earlier

indcatng she had never been refused a vsa She then acknowledged that from the

period of 2003 to 2005 she did not have a vaid visa She was asked where was she

and she stated in Mexco She was then confronted that her testmon earler toda that

she had not eft an time durng the period 2003 to 2008 was not true and she said that

her testimon s that she had no departures since August of 2008, that her father turned

n the 1-94 and she remans steadfast in that

She also indcates that upon entr n August of 2008, she did not intend to leave

However, she dd not dsclose this either at the border or at the Consuate ntervew

when she obtained her vsa last

On redrect there were some questions to carif what had occurred at ast date

of entr n August of 2008 and she again reterated what she had said after she was

confronted wth the docuentaton at Exhibt No 5, indcatng that there were two

windows At the first one she got out of the car and the second one, no one gets out

that they are sipy waved in after he father handed over the documents She was

asked how dd you get your passpor and vsa and not your 4 and she says that her

father kept it to show t

That was prett much the concusion of all of the testmon of the respondent.

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Te Court finds tat te espondent as been cealy untutful and tat te

documentation at Exibit No 5 as revealed tat se as been untutful petty muc n

eveyting tat se as not ony pesented n e testmony today unde oat wc as

been disngenuous and misleadng and as been self seving but se aso did te

same ting wen se appeaed fo a vsa at te Unted States Consulate at least in

2005

Se as aso been untutful wt te fact tat se did not get out of te car and

se canged er testmony to indcate tat t was er fate wo andled al te

papeok Clealy at Exbit No 5 page 7 te espondent appeared and se was

potogaped and fngepnted Se dd not menton ts to te Court untl se was

confronted wt tat document and se ad no coce because, frankly te trut was in

font of er

Te Court finds tat te respondent n applyng fo voluntary departure is

undesevng of te Cout's favoable dscretion Futermoe te fact tat se as ied

unde oat, not only today but in te past in order to be able to obtain ent to teUnted States and se as overstayed er vsa and tat se cealy as eturned te

-94 in an attempt to document er return to e county and possbly not er ovestay,

smply sows tat se lacks te good moa caracter tat woud even be required f

er to obtain voluntay departure As a matter of law se s nelgible As a matter of

disceton te Court would deny er voluntary departure and ode er removed to

Mexico on te cages contaned n te Notice to Appear.

e Court notes tat ts s te most egregious form of abuse of te system

aowing fo pesons to enter te United States awfu y s espondent has been

� untutful and as fankly outgt led to evey autority of te United States regading

mgaton to get wat se wants so apparenty se tinks it is pefecty fne to do so

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This s not acceptabe and the Cout wil not toerate it Ceainy a not going to

rewad he wth a gant of the prvlege of vontarly departing the United States at no

cost to the Govenent

At ths tme, the Cort w enter the following orders.

ORDER OF THE IMMIGATION JUDGE

The espondent's appication for vontary depatre postconcusion, is hereby

dened.

The espondent is odered reoved to Mexco on the chages contained n the

Notice to Appear

sinature

A20513-985

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MADELNE GARCIAIigration udge

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Norma Angelica Ponce-Arriaga, A205 131 985 (BIA May 22, 2015)

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